SHIELD JOURNALISM, NOT JOURNALISTS: Matt Welch has some thoughts on how we should respond to the Miller/Cooper affair:

Offer the protection to any citizen who is in the process of conducting journalism. Judith Miller and Matthew Cooper clearly identified themselves as working on articles they hoped would be published. That’s journalism. Similarly, freelance writer Vanessa Leggett—who was shamefully jailed for 168 days a few years back for refusing to cough up notes on a Houston murder she was compiling for a book, after the Justice Department successfully argued she was not a “working journalist”—would have also qualified.

Non-“professional” bloggers, too, could qualify, in the extremely unlikely event that A) they were actually compiling original data worth subpoenaing, and B) they had identified themselves to interview subjects as working on something to be published. Making this determination would be far less complicated than the current federal shield bill’s messy attempt to define a “covered person” by publication or outlet.

That’s right, though the current journalism establishment hasn’t seemed especially interested in that approach. That’s funny, because as I noted in my piece on the Vanessa Leggett affair (which Matt links), there’s already a statute that does that in other contexts:

At any rate, a more relevant standard than “professional journalist” (though also not a First Amendment doctrine) would seem to be found in 42 U.S. Code section 2000aa, which forbids law enforcement agents from seizing “work product materials” or “other documents” possessed by a person “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.”

This statute (which, oddly enough, neither the Justice Department nor Ms. Leggett’s lawyers mentioned in any press accounts I could find) speaks to purpose, not status. Whether or not you’re a “real” journalist might, I suppose, have some small relevance in deciding whether you really plan to disseminate the work to the public, but that’s not the test: So long as you have the necessary purpose, that’s enough. (Interestingly, Ms. Leggett had in fact written two previous nonfiction works, both published by the FBI). There are exceptions to this statute, involving child pornography, national security, and immediate threats to life, but none would seem to apply here.

The statute isn’t relevant to this case — which is very different from the Vanessa Leggett case — but it certainly demonstrates that Congress has managed to grok the difference between being a member of the Journalists Guild and being a journalist in the past.

UPDATE: Fritz Schranck looks at how privilege works in Delaware, which may provide a useful model. He’s very impressed that Delaware’s privilege applies to “polemicists.”

ANOTHER UPDATE: Jeff Jarvis: “This onion has more layers.”